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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL APPEAL NOS. 73-74 OF 2019

HIGH COURT OF HYDERABAD FOR THE STATE  OF  TELANGANA AND  STATE  OF ANDHRA  PRADESH,  THROUGH  ITS REGISTRAR GENERAL ETC. .....APPELLANT(S)

VERSUS

P. MURALI  MOHANA REDDY  AND  ORS. ETC. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

In  these appeals,  challenge is  laid to the judgment  dated March 25,

2015 passed by the Division Bench of the High Court of judicature at

Hyderabad, whereby two writ petitions filed by the respondents herein

have been allowed.  There are, in all, four persons who had filed these

two  writ  petitions  and  who  are  appointed  as  Additional  District  and

Session Judges in the erstwhile State of Andhra Pradesh (now States of

Andhra  Pradesh  and  Telangana)  as  Adhoc  Fast  Track  Court  District

Judges.  

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2) The  issue  of  appointment  of  such  Adhoc  Judges  came  up  for

consideration before this Court in  Brij Mohan Lal  v. Union of India &

Ors.1 whereby this Court prescribed the modalities and procedure to be

undertaken for absorption of such Judges on regular basis.  It included

qualifying test as well as viva voce test. Pursuant to these directions, the

appellant herein, namely, High Court held the qualifying examination and

also conducted interviews.  These four persons (hereinafter referred to

as the ‘respondents’)  were considered not qualified for  absorption on

regular basis.  The respondents, feeling aggrieved by the decision of the

appellant, had challenged the same in the aforesaid two writ petitions

which have been allowed in the following terms:

"31. In view of the aforesaid discussion, we hold that the decision of the Selection Committee declaring that the petitioners and each of them are not  eligible  to  be  absorbed for  not  securing  the  minimum qualifying marks in viva voce or aggregate qualifying marks in written and viva voce  is  illegal  and  arbitrary. Therefore,  we  direct  the  respondents  to appoint the petitioners and each of them as they have qualified in the written test and have also taken viva voce test. This appointment shall be made within a period of one month from the date of communication of this order, subject to compliance with other formalities as required under law.”

3) Some facts relevant  for  deciding the controversy, may now be taken

note of:

1 (2012) 6 SCC 502

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Pursuant to the directions of this Court in  Brij Mohan Lal’s case

on the aspect of establishment and functioning of Fast Track Courts, the

State of Andhra Pradesh created several Fast Track Court throughout

the State of Andhra Pradesh.  After establishing such Fast Track Court,

the Government  of  Andhra Pradesh issued orders dated October 06,

2003 appointing 20 advocates (19 advocates and 1 APP) from Bar on

ad-hoc basis (in terms of Rules of Andhra Pradesh State High Judicial

Service Special Rules for  Ad hoc appointment 2001) to preside over the

Fast Track Courts vide GOMs. No. 1798, dated October 06, 2003. From

the date of their appointment, the respondents and the similarly situated

persons (all over the country) were claiming absorption permanently to

the post of District and Sessions Judge (Entry Level).  Ultimately, this

Court in Brij Mohan Lal’s case directed all the States to conduct written

examination for the ad-hoc Fast Track Court District Judges, who were

appointed directly from the Bar  and presiding/presided over  the Fast

Track Courts, and to initiate the process of selection for absorption of

those officials.  This Court in the aforesaid case also specified the mode

and  manner  in  which  ad-hoc  Fast  Track  District  Judges  are  to  be

absorbed  in  the  State  Judicial  Service.   In  nutshell,  the  relevant

directions can be summarised:

(a) Written examination is to be conducted for 150 marks.

(b) Interview is to be conducted for 100 marks.

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(c) Qualifying  marks  in  the  written  examination  shall  be  aggregate

40% for general candidates and 35% for SC/ST/OBC candidates.

(d) Each of the appointees shall be entitled to one mark per year of

service in the FTCs, which shall form part of the interview marks.

4) In  pursuance  of  the  aforesaid  directions,  the  High  Court  placed  the  matter

before  the  Committee  of  Judges  constituted  for  recruitment  to  the  cadre  of

District  Judges in the meeting held on August  09,  2012 and the Committee

resolved to issue a notification calling for applications from the working/former

ad-hoc Fast  Track Court District  Judges for absorption into regular  cadre of

Additional District Judges and directed to conduct a written examination with

the syllabus that was given at the time of conducting written examination for

the post of District Judge and to place the notification in the official website of

Andhra Pradesh High Court on August 13, 2012 calling for applications from

working/former Adhoc Fast Track Court District Judges fixing the last date for

receipt of applications as August 31, 2012.  It would be relevant to point out

that for appointment of Judicial Officers in the State, Andhra Pradesh Judicial

Services Rules, 2007 (hereinafter referred to as the ‘Rules’) were also in place.

All the 19 Adhoc Fast Track Court District Judges submitted their applications.

The High Court set up the mode of examination which comprised of Paper-I

objective questions with multiple choice for 50 marks (50 questions at the rate

of one mark per question) and Paper-II subjective or narrative for 100 marks (5

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questions, 20 marks per question) (Total duration for two papers-three hours)

and  viva  voce  for  100  marks.   It  was  also  specified  that  in  the  written

examination one has to get minimum qualifying marks of 40% in aggregate for

general  candidates  and  35%  for  SC/ST/BC  candidates.   Similarly,  marks

relating to the completed years of service as Adhoc Fast Track Court District

Judges, were to be given to all the candidates.

5) Written examination was held on September 06, 2012. Thereafter, the answer

sheets  were  evaluated.   For  conducting  oral  interviews  to  the  qualified

candidates, the matter was placed before the Committee of the judges in the

meeting  held  on  November  27,  2012.    The  Committee  found  that  out  of

nineteen candidates, seventeen alone were qualified for the oral interview and

they were to be called for interview.  Accordingly, call letters were sent to those

seventeen candidates to appear for oral interview.  Two other candidates were

permitted to attend the oral interview in view of interim orders obtained by

them by filing writ petitions.  After completion of interviews for 19 candidates,

a merit list was prepared, and the same was placed before the Committee.  The

Committee  after  considering  the  same  found  that  twelve  candidates  were

eligible to be appointed as regular Additional District Judges.   They have since

been regularised.   

6) As per the High Court, other seven candidates including the four respondents,

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did not secure the required percentage of marks. Insofar as four respondents are

concerned, who filed the writ petitions, the marks secured by them are noted

hereunder:

Sl. No.

Regd. No.

Name  of  the Candidate

Group/ Category

Require percentage of  marks  to be  secured out of 250

Marks  secured  out of 250 (Written  +  Viva Voce)

1 108 Sunitha Busireddy OC 100 99.7 (67.5 + 32.2) 2 111 S. Sarada Devi OC 100 99.3 (60.5 + 38.8) 3 103 G.  Bhuvaneswari

Raju BC-A 87.5 81 (53 + 28)

4 104 P.  Muralimohana Reddy

OC 100 89 (63 + 26)

7) Vide impugned judgment, these writ petitions have been allowed by the High

Court.   

8) At this juncture, we would like to take note of the reasons which have weighed

with the High Court in granting the relief to the four respondents.  The High

Court has taken note of the marks obtained by these four respondents in the

written examination as well as oral interview, as mentioned above.   On that

basis, the High Court has itself observed that 40% qualifying marks in case of

general candidates would be 100 and in case of reserved candidates, it would be

87.5.  Insofar as written examination is concerned, all the four candidates had

secured the minimum qualifying marks.  However, none of them had secured

40%/35% marks in the viva voce.  Further, none of them had secured 40%/35%

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marks in combined written test and viva voce examination.  Precisely this was

the  reason  for  excluding  the  respondents  from the  consideration  zone  from

absorption as they could not secured the qualifying marks in viva voce test and

aggregate qualifying marks of 40%/35%.  This approach of the appellant was

questioned on the ground that no such norm was published in the advertisement

which was later on stipulated unilaterally.  Further, it was in derogation of the

Rules   inasmuch  as  these  Rules  do  not  stipulate  securing  of  minimum

qualifying marks in the viva voce test.  The appellant, on the other hand, sought

to justify the selection process in which respondents stood excluded, with the

submission  that  this  process  was  followed  strictly  in  accordance  with  the

judgment of this Court in Brij Mohan Lal’s case.

9) The High Court has accepted the submission of the respondents. It observed

that each of them qualified the written examination by securing the minimum

qualifying marks as per the stipulation given in the advertisement, which was

also  in  accordance  with  the  Rules.   Insofar  as  advertisement  is  concerned,

following stipulation was inserted therein:

Viva Voce (Interview) : 100 marks Minimum qualifying marks to be secured

: Qualifying marks in the written examination  shall  be  40% aggregate for general candidates and  35%  for  SC/ST/BC candidates.

Each of the appointees shall  be entitled to one mark per year of service in the FTCs, which shall

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form part of the interview marks.

10) Rule  6  of  the  Rules  prescribed  the  methodology  for  conducting  the

examination relevant portion whereof is as under:

"6. Methodology for conducting examination: (1) The High Court from time to time shall  notify the number of vacancies for the category of District Judges to be appointed by direct recruitment indicating inter alia, the  eligibility  criteria,  the  syllabus,  the  number  of  marks  allotted  for written examination, the qualifying mark to be secured by a candidate, the number of marks allotted for the viva voce and the minimum to be secured therein by the candidate.

Provided that  owing to the contingency it  shall  be open to the High Court  to conduct a screening test  which shall  be objective type before  conducting  the  written  examination  followed up by viva  voce after duly notifying the same.

(2)  While  the  written  examination  is  meant  to  test  the  academic knowledge of the candidate, the viva voce is to test his communication skills; his tact; ability to defuse the situations to control the examination of witnesses and also lengthy irrelevant arguments and the like; and his general knowledge.

(3) ..

(4) The written examination shall invariably carry 80 marks limiting the viva voce to the remaining 20 marks.

Provided that  the candidate  shall  secure  a minimum qualifying mark of 40% for O.C. category, 35% for B.C. category; and 30% for S.C.  and  S.T.  category  in  the  written  examination.  (as  amended  by G.O.Ms.No.132, dated 16th November, 2011)

(5) ..

(6) ..

(7) ..

(8) ..

(9) ..

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(10) ..”

11) The  High  Court,  on  the  basis  of  the  aforesaid  stipulation  in  the

advertisement as well as in the Rules pointed out that there is no stipulation for

securing  minimum  qualifying  marks  in  viva  voce  test  either  as  per

advertisement or as per the Rules.  Insofar as judgment in  Brij Mohan Lal’s

case  is  concerned,  the  High  Court  took  the  view  that  it  does  not  mention

qualifying marks in viva voce and also clarifies that examination and interview

were to be held in accordance with the relevant Rules enacted by the State for

direct appointment of Higher Judicial Services.  On that basis, the High Court

concluded:

"20.  While  reading  the  above  pronouncement  of  Supreme  Court harmoniously with the Rule, we think the following procedure would have  been  a  fair  one,  as  the  said  judgment  has  not  ignored,  rather accepted the relevant Rules:-

(i) Written test would be for 150 marks.

(ii) Viva voce would be for 100 marks.

(iii) Candidate has to secure minimum 40% qualifying marks in written test.

(iv) Candidate has to participate in viva voce test.

(v) Securing qualifying marks in viva voce or in aggregate are not the requirements.

21. Therefore, we are of the view that the Selection Committee should not have adopted the norm of securing a minimum qualifying mark in the  viva  voce  test  or  for  that  matter,  minimum aggregate  qualifying marks.”

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12) Regarding the move of the appellant in changing the criteria after issuing

the advertisement, the High Court has held that it could not be permitted and the

discussion in this behalf proceeds as under:

"22.  Moreover, it  is  rightly  contended by the  learned counsel for  the petitioners,  relying  on  the  aforesaid  judgment  of  Supreme  Court  in Umesh Chandra Shukla v. Union of India (3 supra) and A.A. Calton v. Director of Education (2 supra), that the respondents and each of them cannot act contrary to the norms as published in the advertisement or the Rules and admittedly, the advertisement does not stipulate a minimum qualifying mark for the viva voce test or that of aggregate marks both in written and viva voce test. As the petitioners and each of them, in terms of the advertisement as well as the rules, have acted upon and that they acquired a vested right to be considered in terms of the advertisement and the rules.

23. It is not that the norms cannot be changed or varied, but this has to be done in terms of the statutory rules. If they do not permit, the Selection Committee cannot lay down the same as it will be ultra vires.

24. Moreover, as it appears from the original record produced before us, we  find  that  the  assessment  was  made  on  the  basis  of  minimum qualifying marks in the aggregate as well as in viva voce tests and it does not appear that the aforesaid norms were ever published.”

 13) In support, the High Court has referred to various judgments2.  

14) We may mention at the outset that the High Court is right to the extent

that the appointments are to be made in terms of stipulations contained in the

advertisement.  Though, such terms can be changed, but that has to be done in

terms of statutory Rules.  Insofar as advertisement is concerned, there was no

mention of securing minimum qualifying marks in the viva voce test.  The High

2 Umesh Chandra Shukla v. Union of India & Ors., (1985) 3 SCC 721; A.A. Calton v. Director of Education & Anr., (1983) 3 SCC 33; K. Manjusree v. State of Andhra Pradesh & Anr., (2008) 3 SCC 512; State of Bihar & Ors. v. Mithilesh Kumar, (2010) 13 SCC 467 and Arunachal Pradesh Public Service Commission & Anr. v. Tage Habung & Ors., (2013) 7 SCC 737.

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Court is also right in pointing out that Rule 6 of the Rules does not contains any

provision of securing minimum qualifying marks in the interview.  At the same

time, it stipulates qualifying aggregate marks in written examination and viva

voce, as 40% for general category, 35% for backward category and 30% for

SC/ST  category  in  the  written  examination.   This  requirement  of  securing

minimum qualifying  marks  in  the  written  examination  was  fulfilled  by  the

respondents.

15) In the aforesaid backdrop, the only question remains to be seen is as to

whether  the approach adopted by the appellant  was in  consonance with the

modalities  stipulated  by this  Court  in  Brij  Mohan Lal’s  case.   The manner

prescribed by this Court for appointment of such ad-hoc judges on regular basis

is contained in para 207.9 of the judgment which makes the following reading:

"207.9.   All  the  persons  who  have  been appointed  by  way  of  direct recruitment from the Bar as Judges to preside over FTCs under the FTC Scheme shall  be  entitled  to  be  appointed  to  the  regular  cadre  of  the Higher Judicial Services of the respective States only in the following manner:

(a) The direct recruits to FTCs who opt for regularisation shall take a written  examination  to  be  conducted  by  the  High  Courts  of  the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges.

(b)  Thereafter, they shall  be subjected to an interview by a Selection Committee consisting of the Chief Justice and four seniormost Judges of that High Court.

(c) There shall be 150 marks for the written examination and 100 marks  for  the  interview.  The  qualifying  marks  shall  be  40% aggregate  for  general  candidates  and  35%  for  SC/ST/OBC candidates.  The  examination  and  interview  shall  be  held  in

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accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services.

(d) Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks.

(e) Needless to point out that this examination and interview should be conducted by the respective High Courts keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the country by administering justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases.

(f) The candidates who qualify the written examination and obtain consolidated percentage as aforeindicated shall be appointed to the post of Additional District Judge in the regular cadre of the State.

(g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected.

(h) All sitting and/or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment  shall  be  given age relaxation.  No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age.”

16) A conjoint reading of sub-para (c) and (f) of the methodology stipulated

above would clearly bring out the following factors:

(a) Written  examination  was  to  be  for  150  marks  and  interview  for  100

marks.

(b) Such written examination and interview was to be held in accordance

with relevant Rules enacted by the State for direct appointment to High Judicial

Services.   

(c) Each candidate was required to qualify the written examination.

(d) No qualifying marks for viva voce.

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(e) At  the  same  time,  candidates  were  supposed  to  obtain  ‘consolidated

percentage  as  afore-indicated’,  which  means  40%  aggregate  and  35%  for

SC/ST/OBC candidates.   Such consolidate  percentage  means 40% and 35%

respectively out of 250 marks.

17) We are, therefore, of the opinion that even the judgment in Brij Mohan

Lal’s  case does not lay down minimum qualifying marks for viva voce.  It,

however,  prescribes  qualifying  marks  in  aggregate  i.e.  both  for  written

examination and interview combined.

18) Since the Court also directed that examination and interview shall be held

in  accordance  with  the  relevant  Rules  enacted  by  the  State  for  direct

appointment to the Higher Judicial Services, such Rules were to be followed

except to the extent they stood modified by the modalities prescribed by the

Court.  For example, in the instant case, though Rule 6 of the Rules prescribes

30% qualifying marks for SC and  ST category in written examination.  Thus,

the candidates were required to obtain such qualifying marks in the written

examination.  At the same time they were also mandated to secure consolidated

qualifying  marks  (i.e.  both  in  written  plus  interview)  as  prescribed  in  Brij

Mohan Lal’s case.      

19) It  follows  from  the  above  that  insofar  as  written  examination  and

interview is concerned, the minimum qualifying marks could be insisted upon if

there was a stipulation to this effect in the Rules, inasmuch as there was no such

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direction in the judgment  on this aspect.   We find that  insofar  as  Rules are

concerned, minimum qualifying marks are mentioned for written examination

only.  A combined and cumulative effect of the judgment along with the Rules

would be as under:

(a) Minimum  qualifying  marks  are  required  for  written  examination  by

general candidates and SC/ST/OBC candidates respectively.  

(b) No  minimum  qualifying  marks  are  required  for  interview.  However,

consolidated  qualifying  marks  for  written  examination  and  interview  are

required  which  is  40%  aggregate  for  general  candidates  and  35%  for

SC/ST/OBC candidates.

20) As noted above, all the respondents obtained qualifying marks in written

examination.   At  the  same  time,  none  of  them  could  secure  qualifying

aggregate/consolidated percentage marks.  Insofar as non-securing of qualifying

consolidated marks by the respondents is concerned, though the High Court has

noted this fact but has not touched upon this aspect at all.  It has only dealt with

the aspect of requirement of minimum qualifying marks in viva voce test.

21) We are, thus, faced with the situation where the respondents could not

secure qualifying marks as per the judgment of this Court.  However, a close

scrutiny  of  the  marks  obtained  by  respondents  would  disclose  that  two

candidates, namely, Sunitha Busireddy and S. Sarada Devi have secured 99.7

and  99.3  marks  as  against  the  required  marks  of  100.   Insofar  as  Sunitha

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Busireddy is concerned, when the marks are rounded off, it has to be treated as

100 marks.  Since, S. Sarada Devi is also short by only 0.7 marks, there is no

reason not to round off her marks to 100 as well, going by the consideration that

they have been working as ad-hoc judges for number of years and also the fact

that  it  was  only  a  qualifying examination  for  the  purpose  of  regularisation.

Therefore, these two candidates/respondents have to be treated as qualified the

written test and interview when their marks are aggregated.

22) No doubt,  other two candidates could not secure 40%/35% aggregates

marks and, therefore, they cannot be treated as having qualified the examination

(consisting of written test and interview).  However, we find that they have, by

this  time,  substantial  number  of  years  of  service.   Moreover, in  the written

examination they could secure 40%/35% marks though they fell short of this

target when it comes to securing aggregate marks is concerned.  It may also be

pointed out that one of the candidates belongs to the Scheduled Caste category

and as per the Rules persons belonging to the SC/ST category are supposed to

secure a minimum qualifying mark of 30% in the written examination.  In such

circumstances, it would be more appropriate to give them one more chance to

appear in the written examination and viva voce, which should be held by the

High Court in accordance with the mandate in  Brij Mohan Lal’s  case.  This

direction,  therefore,  is  given  having  in  mind  the  aforesaid  equitable

considerations,  and  in  exercise  of  our  powers  under  Article  142  of  the

Constitution.  The High Court may hold such an examination within a period of

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six  months  from today  and  during this  period these  two persons  shall  also

continue in service.

23) As a result, these appeals are disposed in the aforesaid terms.

No order as to cost.

.............................................J. (A.K. SIKRI)

.............................................J. (S. ABDUL NAZEER)

NEW DELHI; JANUARY 25, 2019.